Opinion
W.C. No. 4-191-343
September 5, 1996
FINAL ORDER
The respondents seek review of orders by Administrative Law Judge Friend (ALJ Friend) and Administrative Law Judge Stuber (ALJ Stuber) which required them to pay temporary total disability benefits. We affirm.
On June 21, 1991 the claimant was determined to be permanently and totally disabled as a result of a 1987 industrial injury, and permanent total disability benefits were awarded. In September 1993, the claimant began working as a part-time delivery driver for That Personal Touch Catering (Personal Touch). On November 5, 1993 the claimant suffered injuries during an a work-related automobile accident, and those injuries precluded him from temporarily performing his part-time employment at the Personal Touch.
The respondents admitted liability for the November 5 injuries and provided medical benefits. However, the respondents denied liability for temporary disability benefits based upon the claimant's prior award of permanent total disability benefits.
Relying upon our conclusions in Broy v. Foothills Shooting Center, W.C. Nos. 1-313-503, 3-888-682 3-899-300, June 14, 1991, ALJ Stuber concluded that the claimant is not precluded from receiving temporary total and permanent total disability benefits for concurrent periods of time. ALJ Stuber also determined that Broy was distinguishable from Kehm v. Continental Grain, 756 P.2d 381 (Colo.App. 1987), in which the court concluded that a claimant cannot be more than permanently totally disabled and consequently, prohibited a claimant from receiving concurrent permanent partial and permanent total disability benefits. However, ALJ Stuber did not award any specific benefits.
Thereafter, and pursuant to the parties' stipulation concerning the claimant's average weekly wage from the part-time employment, ALJ Friend ordered the respondents to pay temporary total disability benefits at a rate of $88.01 per week commencing November 5, 1993.
I.
On review the respondents assert that this claim is governed by the provisions of Senate Bill 91-218 (SB 218), and Broy v. Foothills Shopping Center, supra, was decided under the law which existed prior to SB 218. See Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992). Therefore, the respondents argue that Broy is not applicable. The respondents further contend that Broy is inconsistent with the court's interpretation of SB 218 in Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). Specifically, the respondents argue that temporary disability benefits compensate for a loss of earning capacity and a permanently totally disabled worker has no earning capacity. Therefore, the respondents contend that the claimant lost no earning capacity as a result of the 1993 injuries. Alternatively, the respondents argue that the claimant is not permanently and totally disabled because he earned wages, and therefore, argue that the claimant cannot recover concurrent temporary and permanent total disability benefits. We disagree.
Admittedly, the claim for temporary disability benefits in connection with the 1993 industrial injuries is governed by the provisions of SB 218. However, the claimant was determined to be permanently and totally disabled as a result of a 1987 industrial injury. Consequently, insofar as the respondents argue that this determination is pertinent to the claimant's entitlement to temporary disability benefits, the law in effect prior to SB 218 is relevant. See Klug v. Imperial Headwear, Inc., W.C. Nos. 3-997-268 4-104-925, March 16, 1995 (SB 218 does not apply unless the injury resulting in permanent total disability occurred prior to July 1, 1991). Thus, we necessarily reject the respondents' contention that Broy is inapplicable.
In Broy, as here, the claimant suffered a disabling industrial injury after having been awarded lifetime benefits for permanent total disability. In upholding an award of temporary total disability benefits in connection with the new injury, we concluded that Kehm did not preclude concurrent awards of temporary and permanent total disability benefits. In so doing, we stated that:
"Temporary total disability benefits are designed to compensate an injured worker for actual loss of earnings, while permanent disability benefits are intended to compensate for impaired earning capacity. Claimant has sustained actual wage loss here, so in our view, he is entitled to wage loss benefits. Such an award does not involve the inherent inconsistency at issue in Kehm v. Continental Grain, supra, where the claimant sought two concurrent awards for impaired earning capacity, the combined effect of which would have compensated him for being more than permanently `totally' disabled."
Adhering to our conclusions in Broy, we reject the respondents' contention that permanently and totally disabled workers have no earning capacity. Under the law as it existed before SB 218, a claimant was permanently and totally disabled if he lost and would not regain efficiency to a substantial degree in a field of general employment. Professional Fire Protection, Inc. v. Long, 867 P.2d 175 (Colo.App. 1993); Byouk v. Industrial Commission, 106 Colo. 430, 105 P.2d 1087 (1940) . Under this standard a claimant was considered permanently and totally disabled even though the claimant might earn wages from sheltered, occasional, part-time, or temporary employment. See New Jersey Zinc Co. v. Industrial Commission, 165 Colo. 482, 440 P.2d 284 (1968) ; Hobbs v. Industrial Claim Appeals Office, 804 P.2d 210, (Colo.App. 1990). Thus, the prior law contemplated that permanently and totally disabled workers retained some earning capacity.
While it is true that SB 218 created a more "strict" standard of proof for permanent total disability, the General Assembly did not intend to discourage permanently totally disabled workers from pursuing any employment. Under SB 218 permanent total disability exists when the claimant is unable to earn "any wages." Section 8-40-201(16.5), C.R.S. (1996 Cum. Supp.); McKinney v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 93CE0021, February 9, 1995). However, once the claimant establishes permanent total disability, the employer may not reopen an award of permanent total disability benefits unless the claimant is earning in excess of four thousand dollars per year. Section 8-43-303(3), C.R.S. (1996 Cum. Supp.). In McKinney, the court concluded that the legislature established the $4,000 a year threshold to avoid a punitive or demoralizing consequence for disabled workers' efforts to earn some wages. Consequently, workers who are permanently and totally disabled as a result of injuries occurring prior to and after July 1, 1991 are not necessarily presumed to be devoid of all earning capacity.
In view of this conclusion, the claimant's award of permanent total disability benefits was not a determination that the claimant had sustained a one hundred percent loss of earning capacity. This is particularly true in view of the fact that the benefits were awarded under the pre-SB 218 standard of permanent total disability.
It follows that the claimant's part-time employment as a delivery driver is not necessarily inconsistent with his receipt of permanent total disability benefits. Therefore, we reject the respondents' argument that the claim for temporary disability benefits is "premature" in the absence of a finding that the claimant is no longer permanently and totally disabled.
Furthermore, this record demonstrates that, despite his permanent total disability, the claimant retained the capacity to earn $132.02 per week. Because the compensable injuries temporarily precluded him from performing his part-time employment, the claimant has suffered an actual, immediate wage loss of $132.02 per week. Accordingly, the award of temporary total disability benefits does not compensate the claimant for the same loss of earning capacity as the award of permanent total disability benefits, and thus, the awards of concurrent benefits do not constitute a double recovery. Cf. Circle K. Corp. v. Industrial Claim Appeals Office, 809 P.2d 1116 (Colo.App. 1991).
In reaching this conclusion we recognize the language in Colorado AFL-CIO v. Donlon, supra, where the court stated that temporary and permanent disability benefits both "compensate a claimant for the extent to which his or her physical impairment impacts upon that claimant's past and future ability to earn wages." However, this statement was made in the context of an equal protection challenge to the temporary and permanent partial disability benefit cap established by SB 218, which is currently codified at § 8-42-107.5 C.R.S. (1996 Cum. Supp.). In that context the court concluded that there is no violation of equal protection if claimants with medical impairment of 25 percent or less are restricted to combined temporary and permanent partial disability benefits in the amount of $60,000, even though ratio between the two forms of benefits is different. Consequently, Donlon does not address the issue presented here.
Moreover, the Donlon court acknowledged that temporary disability benefits are "designed to replace a claimant's immediate loss of wages," and that there are "some differences in the underlying purposes served by temporary and permanent disability benefits." That qualitative difference was most recently reiterated by another division of the court in Broadmoor Hotel v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA014, August 22, 1996) (calculation of medical impairment benefits is not dependent on the amount of temporary disability benefits paid to the claimant). Therefore, we are not persuaded that Donlon precludes an award of concurrent temporary and permanent total disability benefits.
The respondents' reliance upon the SB 218 amendments currently codified at § 8-42-105(3)(a)-(d), C.R.S. (1996 Cum. Supp.) does not alter our conclusion. We agree that subsection 8-42-105(3) reflects a legislative intent to terminate temporary disability benefits when the claimant has regained his temporary earning capacity. However, there is no finding and no assertion that any of the events enumerated in subsection 8-42-105(3)(a)-(d) have occurred in this matter. Furthermore, the issue in this case is not the termination of temporary disability benefits, but rather, the initiation of such benefits. Therefore, § 8-42-105(3) is not determinative of whether ALJ Friend erred in awarding temporary total disability benefits.
II.
Relying on authority from other jurisdictions, the respondents also contend that the combined benefits for permanent total and temporary total disability benefits must be based upon the claimant's average weekly wage in 1987, and may not exceed eighty percent of the state average weekly wage as of June 1991, when the claimant was declared permanently and totally disabled. The respondents' argument is based upon former § 8-51-106 C.R.S. (1986 Repl. Vol. 3B), which provides that permanent total disability benefits may not be awarded in "excess of the weekly maximum benefits specified in this article for injuries causing temporary total disability," and former § 8-51-102 C.R.S. (1986 Repl. Vol. 3B), which limits temporary total disability benefits to "sixty-six and two-thirds percent of [the claimant's] average weekly wages . . . . not to exceed a maximum of eighty percent of the state average weekly wage."
Initially, we note that the record does not indicate the amount of permanent total disability benefits being paid to the claimant. Nor does the record contain any evidence concerning the claimant's average weekly wage in 1987. Consequently, the record is wholly insufficient to support a finding that the amount awarded to the claimant in combined temporary and permanent total disability benefits exceeds eighty percent of the state average weekly wage as of June 1991. See Director of the Division of Labor order dated July 1, 1990 establishing state average weekly wage as $417.18 pursuant to § 8-47-106 C.R.S. (1990 Cum. Supp.).
In any case, we are not persuaded that Colorado has adopted the analysis of the jurisdictions cited by the respondents. As argued by the respondents, former § 8-51-107 provides a maximum rate for permanent total disability benefits and former § 8-51-102 provides a maximum rate for temporary disability benefits. However, neither statute contains a maximum benefit rate for concurrent temporary and permanent total disability benefits. Nor are we able locate such a limit elsewhere in the Workers' Compensation Act.
We also note that in Mesa Manor v. Industrial Claim Appeals Office, 881 P.2d 443 (Colo.App. 1994), the court rejected an argument that the amount of concurrent temporary disability and permanent partial disability cannot exceed the claimant's average weekly wage. Once again, the court's conclusion was based upon the qualitative difference between temporary and permanent disability benefits. Compare Waymire v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 95CA1186, May 2, 1996); (claimant not entitled to concurrent awards of permanent total and medical impairment benefits for same injury).
Moreover, the respondents' reliance on State Compensation Insurance Fund v. Lyttle, 380 P.2d 62 (1963), is misplaced. Nothing in Lyttle suggests a maximum limit for concurrent benefits. To the contrary, Lyttle stands for proposition that the statute does not establish a minimum benefit rate for claimants who are earning no wages at the time of the industrial injury.
Lastly, the respondents' theory requires that the claimant's temporary disability rate for the 1993 injury be based upon the claimant's average weekly wage at the time of the 1987 injury. However, § 8-42-104(1), C.R.S. (1996 Cum. Supp.) requires that compensation for a second or "later" industrial injury shall be calculated from the claimant's average weekly earnings at the time of the later injury. Platte Valley Lumber, Inc. v. Industrial Claim Appeals Office, 870 P.2d 634 (Colo.App. 1994). Therefore, the respondents' analysis is inconsistent with the requirements of § 8-42-104(1).
IT IS THEREFORE ORDERED that ALJ Stuber's order dated November 30, 1994 and ALJ Friend's order dated February 22, 1996, are affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill WhitacreNOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed September 5, 1996 to the following parties:
Clarence K. Rowe, 1305 S. Gaylord St., Denver, CO 80210
That Personal Touch Catering, Inc., 6553 S. Revere Parkway, Englewood, CO 80111
Colorado Compensation Insurance Authority, Attn: Marjorie J. Long, Esq. — Interagency Mail
Richard T. Gould, Esq., 1017 S. Gaylord St., Denver, CO 80209 (For the Claimant)
Alan Epstein, Esq., 1200 17th St., Ste. 1700, Denver, CO 80202 (For the Respondents)
BY: _______________________